Thursday, 7 May 2015

Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

Steve Peers

What happens when a marriage
between an EU citizen (who has moved to another Member State) and a non-EU
citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those
rules appear to conflict with each other nearly as much as divorcing couples
do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately,
this opinion is fundamentally flawed, and the Court of Justice should take an
entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in
the form of the Citizens’ Directive, gives EU citizens the right (subject to
certain conditions) to move to another Member State, joined or accompanied by
their spouse and other specified family members. But what happens if that
marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a
spouse (and therefore still entitled to derived free movement rights, if that
spouse is a non-EU citizen) even if the couple in question is separated, up
until the date when the divorce becomes final. After the divorce, the Court
ruled in case law starting with Baumbast
that since the Regulation on free movement of workers gives the children
of EU workers (or former workers) a right of access to education, they were
entitled to stay on the territory to exercise that right, and the non-EU parent
who cared for that child had a right to stay too (regardless of any divorce
from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage
between an EU citizen and a non-EU citizen end are regulated by the citizens’
Directive. Article 12(2) of that Directive provides for the non-EU family
members to retain residence rights in some cases if the citizen dies. Article
12(3) provides for the non-EU family members to retain residence rights if there
are children left behind who are still studying, where the EU citizen dies or leaves
the host Member State. Article 13(2) then specifies the right to remain of
non-EU family members, in the event of divorce or end of a registered
partnership. There are four alternative possibilities for retaining the right
of residence in this case. The first possibility allows the right to be
retained if the marriage or partnership has lasted at least three years,
including at least one in the host Member State, ‘prior to the initiation of
the divorce or annulment proceedings or termination of the registered partnership’.
(After five years’ legal residence, the non-EU family members obtain permanent residence
status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing
couples. In each case, the EU citizen first of all departed Ireland, leaving
the non-EU spouse behind, and then
initiated divorce proceedings. So in a
case involving both a departure and a
divorce, what rules govern the situation?

The opinion

The Advocate-General states that
Article 12(3) of the Directive sets out an exhaustive
list of cases where a non-EU family member can retain residence rights after an
EU citizen leaves the host Member State (presumably leaving aside the
Regulation on free movement of workers, which is only relevant when there are
also children involved). Conversely, the Advocate-General believes that Article
13 ‘is intended, in principle, to apply only to cases where both spouses are
still residing in the host State until the time of the divorce’. If the EU
legislature had wanted to create an exception to the rules on departure for
cases relating to divorce, it would have done so expressly. So Article 13 can only apply where a divorce
claim is made before the EU citizen
leaves the host Member State. Articles 12 and 13 can only be applied together in
the cases referred to in Article 12(3), ie where the EU citizen has departed and
there are children in education. This analysis is supported for reasons of
legal certainty: it cannot be clear when an EU citizen departs that a marriage
will end in divorce or not.

Therefore, in the
Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce
proceedings, the non-EU citizen left behind loses the right to reside under EU
law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member
State, then Article 13(2) applies and the non-EU ex-spouses will retain a right
to stay if they meet the other conditions set out there. She admits the
inequity in distinguishing between these two cases. However, problems could be
avoided if the non-EU citizen accompanied the EU citizen, or began divorce
proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of
the right to family life and private life referred to in Article 7 of the EU
Charter of Fundamental Rights, since there is no family life to protect any
longer in the case of a divorce. However, the Charter would protect the
position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had
moved to another Member State.

Finally, the opinion confirms
prior case law to the effect that an EU citizen can also rely on resources
provided by his or her non-EU family member in order to qualify for free movement
rights.

Comments

With great respect, this opinion
is highly problematic. The starting point is an over-literal interpretation of
the relationship between the rules on departure and divorce in the EU citizens’
Directive. This leads the Advocate-General to suggest an interpretation which
fails to take account of the consequences of her argument, and leads to results
which were surely not intended by the EU legislature.

Let’s start with the purportedly literal
interpretation of the Directive. In fact, there is nothing in the wording of
Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate
that it sets out an exhaustive list of cases where non-EU citizens get to stay
despite the EU citizens’ departure. We can turn the Advocate-General’s argument
on its head here: if the EU legislature had wanted to create an exception to
the rules on divorce for cases
relating to departure, it would have
done so expressly. Anyway, two of the four grounds for obtaining legal
residence in the event of divorce (access to children and custody of children) will
usually cross over with the grounds to remain after departure referred to in
Article 12(3). If Article 12(3) were the only ground for the right to stay
after departure, the reference to these cases in Article 13(2) is therefore
largely redundant.

As for the argument based on
legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does
not create any such certainty either. The Advocate-General herself argues for
an exception where a marriage is intact despite a cross-border separation, but
how can we know if that is the case? How
long a period in another Member State is necessary to count as a ‘departure’? What
if the EU citizen decides to come back to the host State? What about cases
where the EU citizen steps outside for the proverbial pack of cigarettes – and then
goes missing?

Furthermore, the substance of the
Advocate-General’s own argument is legally unclear. She mostly refers generally
to the departure on an EU citizen from a Member State taking precedence over
the rules on divorce set out in Article 13(2). But at one point, she makes a
distinction based on whether the divorce application was filed before or after
the EU citizen left the host Member State. Which is it? It’s a crucial distinction,
because for the other three categories
of cases where non-EU citizens retain residence rights despite a divorce (custody
of children, access to children, domestic violence), there’s no reference to when the divorce
proceedings were initiated. Anyway, her acceptance that the timing of the
application for divorce might be relevant for the interpretation of the rules
on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining
a right of residence following the EU citizen’s departure.

What about the Advocate-General’s
suggested solutions? It would be highly awkward, to say the least, to expect
the estranged non-EU spouse to accompany his or her family member to another Member
State, even though (according to the CJEU’s case law) they would not have to
live under the same roof in that country. In any event, the family member would
not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by
EU free movement rules: the EEA states and Switzerland). And it would be
outrageous to conclude that the estranged non-EU spouse should follow an EU
citizen in domestic violence cases.

The Advocate-General doesn’t
mention the possibility that the non-EU family member could obtain rights under
the EU’s long-term residence Directive, by adding periods of prior legal stay in
that Member State to the time spent as the family member of an EU citizen. But not
all non-EU citizens have had such a period of prior legal stay; and that Directive
anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse
bringing divorce proceedings first depends on the interpretation of the EU’s
rules on civil jurisdiction, which give jurisdiction to the courts of
the Member State where one or both spouses are ‘habitually resident’. But that
term is not defined in the Regulation, and so it might be argued that the courts
of the host State, at least in some cases, will not have jurisdiction. Anyway,
it is not unreasonable to expect the non-EU citizen concerned to devote his or
her efforts to saving the marriage – and it’s even possible that he or she is
unaware of the problems in it (where an EU citizen is having an affair, for
instance). Also, for the reasons already
set out, this possibility should logically only apply where the Directive
refers to the initiation of divorce proceedings. But that would mean that
bringing proceedings first could not benefit those with custody of children,
access rights to children or domestic violence issues.

Finally, it should be noted that
the Advocate-General’s interpretation of the EU Charter analysis is simply wrong:
Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as
regards family life, but also private
life. This includes all the relationships which a foreigner has built up in
a State, even if he or she no longer has family members there: see the Slivenko judgment, for
instance.

So what is the correct approach to
this issue? Admittedly, the Directive is very unclear about the relationship between
divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply
simply because the EU citizen left the country – particularly given that the
whole point of EU law in this field is to promote such free movement in the
first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable
period after the EU citizen has left the country. That’s undeniably vague. But
the Directive is full of vague rules, such as the need to assess whether there
is a reasonable prospect of finding employment, or to apply a case-by-case
assessment of those convicted or crimes or applying for social assistance. And,
as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept
of ‘departure’ isn’t any more precise anyway.

2 comments:

Good analysis. Another problem with the decision is its failure to take account of domestic divorce laws that may actually make it impossible for the non-EU spouse to "him/herself institute the divorce proceedings in good time in the host Member State". Such as the laws in Ireland - ironically, the Member State where these proceedings originated - which require four years' separation before divorce proceedings can be instituted at all.

Rules and regulations always vary according to the country. Not every country holds the same rule on this irrespective of the religion. There should be harmony and leniency in any rules for this marriage and divorce. However, the citizens of the country should know the rules in detail. And if a foreigner is marrying, that person should be aware about your country's rule. And if divorce happens, it should be solved amicably.